Farrar v. Wolfe, No. 38650

• Court: Supreme Court of Oklahoma
• Writing for the Court: JOHNSON; DAVISON; WILLIAMS
• Citation: 357 P.2d 1005
• Parties: Thelma FARRAR, Plaintiff in Error, v. Dr. Frank B. WOLFE, Defendant in Error.
• Decision Date: 10 May 1960
• Docket Number: No. 38650

Page 1005

357 P.2d 1005 1960 OK 123 Thelma FARRAR, Plaintiff in Error,
v.
Dr. Frank B. WOLFE, Defendant in Error. No. 38650. Supreme Court of Oklahoma. May 10, 1960.
Rehearing Denied and Dissenting Opinion Filed Dec. 6, 1960.
Application to File Second Petition for Rehearing Denied
Jan. 10, 1961.

Page 1006

Syllabus by the Court

1. There can be no recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence, against a physician for negligent aggravation of such injuries by improper treatment, after a settlement with full release ('Release of All Claims') of the tort-feasor who caused the injuries.

2. Record examined and held, that the judgment on the pleadings in favor of the defendant is not contrary to law.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Action for damages. Judgment for defendant on pleadings, and plaintiff appeals. Affirmed.

F. J. Lucas, Tulsa, for plaintiff in error.

Wheeler & Wheeler, Tulsa, for defendant in error.

JOHNSON, Justice.

This is an appeal from a judgment on the pleadings rendered by the District Court of Tulsa County, Oklahoma, in favor of the defendant, Dr. Frank B. Wolfe.

The record discloses that the plaintiff was a nurse, and that on or about May 6, 1957, while employed at the Osteopathic Hospital, she slipped on a slick floor and fell, from which fall she suffered a broken hip. She filed an action against the hospital for damages on the 26th day of September, 1957. A compromise and settlement of this action was made on May 6, 1958. Thereupon this action was dismissed with prejudice, and she executed a general release to the hospital for the damages that she suffered by reason of the fall on the floor of the hospital.

After the accident Dr. Frank B. Wolfe allegedly undertook to faithfully, skillfully and diligently treat and cure the fractured hip of the plaintiff; that Dr. Wolfe performed two operations upon the plaintiff which were unsuccessful. The plaintiff thereafter employed Dr. N. S. White and Dr. Worth Gross, and they re-operated on the plaintiff's hip at a cost of about $2,500 or more.

On July 8, 1958, Thelma Farrar filed an action in the District Court of Tulsa County, Oklahoma, against Dr. Frank B. Wolfe wherein she alleged damages suffered by her by reason of Dr. Wolfe's unprofessional and negligent treatment of her broken hip. That is, she sought damages against the doctor for his alleged negligent aggravation of her prior injuries (resulting from the fall on the hospital floor) by improper treatment.

Dr. Wolfe answered by general denial and plead the settlement of plaintiff's case against the Oklahoma Osteopathic Hospital and claimed the release executed by plaintiff in the case against the hospital as a bar to the action against him.

In plaintiff's reply she asserted that at the time she settled her case against the hospital she did not release the defendant, Dr. Wolfe, in the case against him.

A copy of the release was attached to Dr. Wolfe's answer and made a part of his pleading and reads as follows:

'Release of All Claims

'For and in Consideration of the payment to me at this time of the sum of Sixteen Thousand Nine Hundred Eighty Four and 50/100 Dollars ($16,984.50), the receipt of which is hereby acknowledged, I, being of lawful age, do hereby release, acquit and forever discharge Oklahoma Osteopathic Hospital of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about 31st day of May, 1957,

Page 1007

at or near Second Floor, 744 West Ninth Street, Tulsa, Oklahoma.

'I hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.

'It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Oklahoma Osteopathic Hospital, by whom liability is expressly denied.

'This release contains the Entire Agreement between the parties hereto, and the terms of this release are contractual and not a...